In this decision, the Appeal court overturned the decision of the Fair Work Commission’s single Commissioner decision that Mr Rogers, a school teacher at Peregian Beach College (“the College”), represented by the Independent Education Union (“IEU”), was not entitled to paid parental leave as the primary caregiver, because he had already received paid parental leave as the non-primary caregiver, of the same child, at an earlier point in time.
The Appeal court agreed to hear the appeal because Mr Rogers’ arguments raised issues about the interaction of entitlements provided by an Enterprise Agreement (“EA”) and the National Employment Standards, which enlivened the public interest. It is important to emphasise here that appeal hearings are not granted as of right; strict criteria must firstly be satisfied.
The decision turned on the Appeal court’s interpretation of the specific terms of the College’s EA relating to potential ‘double-dipping’ of paid parental leave (“PPL”). The College argued Mr Roger’s was not entitled to paid parental leave as the primary caregiver on the basis that he had already taken paid parental leave as a non-primary caregiver, of the same child, at an earlier point in time. The College argued the entitlements were “mutually exclusive”; that Mr Rogers was entitled to one or the other, not both. The union argued the PPL entitlements under the EA as a primary caregiver and non-primary caregiver were independent and accessible at any relevant point in time depending on the employee’s caregiving status, and access to both did not amount to double dipping.
The Facts
Mr Rogers was an employee of the College at the beginning of 2022 before applying in 2023 for PPL as the non-primary caregiver, following the birth of his child. His application for PPL was granted by the College, in accordance with the EA, and he commenced one week of paid leave as the non-primary caregiver. Later in time Rogers applied to the College for paid parental leave as primary caregiver, of the same child. The College declined the leave upon the basis that paid non-primary carer’s leave had already been paid to him; that the entitlements were “mutually exclusive” and advised Mr Rogers that he was entitled to “one or the other”. The Commissioner determined that Mr Rogers was excluded from accessing PPL as the primary caregiver where he had earlier accessed PPL as the non-primary caregiver.
The IEU contended the Commissioner incorrectly interpreted the terms of the EA and had erred, and as such Mr Rogers should have access to both PPL entitlements.
Implications for Employers subject to Enterprise Agreements
It is important to understand that this decision is based on the specific circumstances of Mr Rogers’ individual situation in connection with the specific terms of the College’s EA in regards paid parental leave. Each situation must be determined on its own merits; this decision does not pave the way for all employers governed by an EA in regards to paid parental leave.
The decision serves as a timely reminder that the terms of an EA must be carefully considered when considering requests for EA entitlements by employees. In this decision, the Appeal court stated that the plain language of the College’s EA provided no basis for the narrow construction adopted by the College. It did not, in the Appeal Court’s view, limit an eligible employee’s entitlement to paid leave as either a primary caregiver or a non-primary caregiver. This decision may not apply to a different set of circumstances, applying an EA with different wording relating to paid parental leave.
This particular decision is a win for employees’ rights. Unions may leverage this momentum to negotiate more robust entitlements including paid paternity and other leave provisions during future renewals of enterprise agreements.
This decision also highlights the importance of aligning workplace practices (incorporated in Enterprise Agreements) with the minimum National Employment Standards (“NES”). Currently, these standards guarantee two weeks of unpaid parental leave for fathers and partners but permit enterprise agreements to offer more advantageous terms, inclusive of paid leave. A ruling that prioritises employee rights increases awareness and acceptance of these enhanced provisions.
Implications for the Private Education Sector
This ruling against Peregian Beach Community College may prompt a review by independent schools of the terms of their current enterprise agreements, particularly relating to employee entitlements including paid parental leave. This favourable outcome for the IEUA could spark further litigation around interpretation of specific entitlement terms within EAs applicable to the non-government Education sector. Schools may consider having their EAs reviewed in light of this decision, preferably seeking legal advice.
Key Takeaways
Independent schools and other organisations monitoring the outcome of this case may consider taking proactive steps to avoid disputes (and possible penalties) over entitlements. They might consider conducting comprehensive audits to ensure compliance with legislative, Award and/or EA requirements, particularly in regards employee entitlements, thus mitigating the risk of litigation or incurring penalties.
New laws, which have commenced at the start of 2025, have been designed to introduced to criminalise intentional wage underpayment, which includes entitlements such as paid paternity leave. Honest mistakes are taken into account, but careful scrutiny of the specific circumstances would occur in making this assessment. Similarly, not being aware of legislative changes such as these new laws is no excuse. The Fair Work Ombudsman is now accredited to investigate suspicious institutional matters where, if found on the presumption of an offence, can be prosecuted and sentenced to a term of imprisonment up to 10 years. Civil penalties will also apply to employers found to have underpaid their employees’ wages, including entitlements. These penalties include fines payable by the employer as well as and personal director penalties.
With a wealth of collective knowledge and over two decades experience providing insight and advice, Vocare Law is well equipped to assist our School clients . Please do not hesitate to contact our office if you would like our office to assist your institution with drafting or reviewing employment contracts, procedures or policies.
Contact us on 1300-VOC-LAW / 1300-862-529 or email: enquiry@vocarelaw.com.au
This article was written by Fran Keyes & Jack Macpherson.
The information contained herein does not, and is not intended to, constitute legal advice and is for general informational purposes only.
